Patna High Court
Vishwa Nath Singh vs Union Of India (Uoi) on 6 March, 1984
Equivalent citations: 1985(33)BLJR740
JUDGMENT Satya Brata Sanyal, J.
1. Petitioner is a Constable of Central Reserve Police Force. The Force was constituted under Central Reserve Police Force Act, 1949 (hereinafter to be referred to as 'the Act'). He was appointed in the year 1970. In the year 1976 he was posted at Mokamahghat.
2. He has been dismissed by an order of the Commandant on 25-10-1976 (Annexure-6). His appeal was dismissed (Annexure-7). The dismissal order as preceded by chargesheet and domestic enquiry. Petitioner participated in the enquiry. The Enquiring Officer found the charge proved (Annexure-4). Before passing the order of dismissal, petitioner was also asked to show cause against proposed punishment. This is required under rule 27 (7) of Central Reserve Police Force Rules, 1955 (hereinafter to be referred to as 'the Rules)'. Petitioner desires this Court to quash the enquiry report (Annexure-4), the order of dismissal (Annexure-6) and the order dismissing his appeal (Annexure-7).
3. learned Counsel of the petitioner raised a number of points. Most of points relate to domestic enquiry being vitiated in law charges levelled are vague and do not constitute misconduct, Enquiring Officer's reliance on prior evidence of the wife of the complainant Constable, is an extraneous consideration, the Commandant even though required under the Rules to record his own finding on the charges levelled, on receipt of enquiry report, he did not do so.
4. Mr. Kamla Kant Prasad, learned Standing Counsel refuted the points raised. According to learned Counsel misbehaving with colleague's wife, during his absence on duty from his quarter in the night, is gross indiscipline. The charge states these facts and, therefore, not vague. The evidence of the victim lady was recorded by the previous Enquiring Officer and she was cross-examined at length by the petitioner (Annexure-A). The said enquiry was cancelled on a technical ground only, as because the complaint petition of the husband was not served on the petitioner. His evidence was available on record, therefore, it was not an extraneous consideration. The Commandant, according to learned Counsel has not acted mechanically which is manifest from his final order (Annexure-6).
5. The charge levelled against the petitioner is Annexure-1. It states the petitioner committed an offence by going to family lines of his colleague, during his absence on duty, while the wife was alone, with an intention to commit immoral act. This is said to have been seen by Constable Mahesh Kumar. Going to family lines by any one not living there is forbidden under the Camp standing order dated 15-5-1974. This is said to be misconduct under Section 11 (1) of the Act.
6. Under the Act or the Rules misconduct has not been set out. Section 9 of the Act lists More Heinous Offences, and Section 10 of the Act lists Less Heinous Offences. Section 10(n) reads as follows:
10. Less Heinous Offences=Every member of the Force who:
xx xx xx xx xx
(n) is guilty of any act or omission which, though not specified in this Act, is pre-judical to good order and discipline; or xx xx xx xx xx
7. Those who commit the offences listed, for More Heinous Offences, punishment imposable is 7 years or 14 years imprisonment with fine which may extend to 3 months' pay. For Less Heinous Offences a person can be imprisoned for a terra which may extend to 1 year or with fine which may extend to three months' pay. Section 11 (1) reads as follows:
11. Minor Punishment:
(1) The Commandant or any other authority or officer as may be prescribed, may, subject to any rules made under this Act, award in lieu of, or in addition to, suspension or dismissal any one or more of the following punishments to any member of the Force whom he considers to be guilty of disobedience, neglect of duty, or remissness in the discharge of any duty or of other misconduct in his capacity as a member of the Force, that is to say:
8. The word "dismissal" finds mention in Section 11 of the Act. The said Section envisages that the Commandant is conferred with the discretion to impose minor punishment in lieu of or in addition to suspension and dismissal. Rule 27 forms part of Chapter VI-Discipline. It deals with procedure for the award of punishments. The punishments enumerated in the table are dismissal, removal etc. as well as the authorities empowered to impose the same.
9. From a conjoint reading of Sections 9, 10, 11 of the Act and rule 27 of the Rules, it is clearly established that for the enumerated offences in those Sections a person can be convicted and sentenced to imprisonment. The concerned person is also exposed to disciplinary action. The list of enumerated offences are, however, not exhaustive. Any act or omission prejudicial to good order and discipline of the Force is also an offence and similarly exposes a person both to be proceeded for action for imprisonment and/or disciplinary action. Minor punishment enlisted in Section 11 of the Act is not the only punishment meant for Less Heinous Offences, as contended by the learned Counsel of the petitioner. They are "in lieu of" or "in addition to" the power of suspension and dismissal. It is merely conferment of discretion on the disciplinary authority in the matter of imposition of punishment in a given case, I am, therefore, of the opinion that the charge levelled against the petitioner is covered under Section 10(n) of the Act for which the punishment of dismissal is permissible in law. The charge is not vague as it sets out all the facts and circumstances which the petitioner was called upon to meet in the departmental enquiry.
10. I do not find force in the argument of the learned Counsel of the petitioner that the departmental enquiry is vitiated in law for the reason that the victim lady was not examined in the present proceeding, even though her previous evidence has been very much used and relied upon. It appears in the earlier departmental proceeding she was examined and cross-examined by the petitioner at length. She withstood the test. The previous, enquiry however, was cancelled by the authorities, because the petitioner was not given a copy of the petition of complaint made by the husband of the victim lady. Question is if the evidence can be taken into consideration as her previous statement and in so doing is there any infringement of Rule 27 (2)(ii) and (iii) or the principles of natural justice. Rule 27 (2)(ii) and (iii) reads as follows:
27(2). At the commencement of the enquiry the accused shall be asked to enter a plea of "Guilty" or "Not Guilty" after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral:
(i) it shall be direct;
(ii) it shall be recorded by the Officer conducting the enquiry himself in the presence of the accused;
(iii) the accused shall be allowed to cross-examine the witnesses.
11. It is settled law in a domestic enquiry be it relating to Government servant or industrial workman/worker, the "strict and sophisticated rules of evidence under the Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible There is no allergy to hear-say evidence provided it has reasonable nexus and credibility." The law requires that such bodies should observe rules of natural justice in the conduct of the enquiry and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a court of law. It is only so, as the proceedings, departmental and criminal are entirely different in nature and operate in different fields and have different objectives. Material or the evidence in the two proceedings may or may not be the same and in some cases materials or evidence which would be evidence in departmental enquiries would be tabooed in criminal proceedings. Rules relating to appreciation of evidence in the two are different. The scope of the two enquiries is also different. In a criminal case an incriminating statement made by accused is totally inadmissible in certain circumstances or before certain individuals. In a departmental enquiry the officer is not bound by such technical rule. The degree of proof also varies. It has been held by high authorities that no principle of law is offended when a departmental enquiry follows an order of acquittal See J. K. Cotton Spinning and Weaving Co. Ltd. v. Its Workman 1965 F.L.R. 27 Union of India v. Y. R. Verma State of Haryana v. Rattan Singh 1977 (34) F.L.R. 264 Moti Singh Chagga Singh v. S.D. Mehta 1966 L.L.J. 55 Nand Kishore Prasad v. State of Bihar. 1968 L.L.J. 703 The criminal courts have nothing to do with the conduct and discipline of the delinquent person (See Employees in relation to Hudidin Colliery v. Presiding Officer 1971 P.L.J.R. 103 The test whether an employer has made careful enquiry requires the employer to show that he made a reasonably diligent investigation of the relevant circumstances; the test is one of reasonable diligence (See-Revert D. Anderman. The law of UNFAIR DISMISSAL, 78 Edn).
12. Can it be said that the procedure followed in the instant Departmental proceeding, would not have been adopted by a "reasonable employer." The matter related to the lady's morality. She was fully cross-examined on all aspects. On perusal of the cross-examination (Annexure-A), I think she was not produced to save her from being wronged further. The petitioner would have only repeated the cross-examination. Her evidence was taken by an officer conducting enquiry in the presence of the petitioner. There is no allegation of any mala fide against the said Enquiring Officer. There is, therefore, no infringement of the Rules and the fair play.
13. There is also no substance in the argument that there has been infringement of Rule 27(6), inasmuch as the Commandant did not record his own finding while he passed order of dismissal. This is not so. Mere reading of paragraphs 4 and 5 of Annexure-6, belies the submission. Similarly, the appellate court after having considered the entire evidence and giving full thought over the matter, concluded that the charge is not fabricated. It further observed:
The appellant's gross misconduct in sneaking into colleague's Quarter during the latter's absence, his monstrous act in taking undue advantage of the loneliness of a helpless female, his pervert act in molesting and raping her and above all his betrayal of the faith of his colleague are factors which have to be taken into account against the appellant.
14. In the words of court of appeal, I think the net has been fairly cast and all relevant matters that should weigh with good employer has been considered (See yokes Ltd. v. Bear Bear 1973 Industrial Relation Law Reports 363).
15. In the result, the writ petition is dismissed with cost. Hearing fee Rs. 250/-